C6: The International Law Commission

Last updated: 10/27/2011 // This Nordic statement to the sixth committee of the General Assembly was given by the Head of Department of International Law in the Ministry for Foreign Affairs of Denmark, Mr. Michael Braad. The Nordic countries see the International Law Commission as a central body in the codification and progressive development of international law.

Thank you, Mr. Chairman.

I have the honour to speak on behalf of the five Nordic countries, Finland, Iceland, Norway, Sweden and my own country, Denmark. Allow me to thank [Mr. Maurice Kamto of the International Law Commission] for the presentation of the work of the Commission during its last session.

In the coming days the Nordic countries will provide more detailed comments on certain specific issues under consideration. Before doing so we would like to make a few general comments and, in that context, touch upon certain topics which we believe illustrate some of the challenges facing the Commission.

As we have stated before, the Nordic countries are strong supporters of an international order based on the rule of law. International law should therefore always be respected and continuously be developed and strengthened. The International Law Commission plays a crucial role in this endeavour, and the Nordic countries see the ILC as a central body in the codification and progressive development of international law. At the same time we have – also in the past – not shied away from expressing our point of view and making critical remarks on some aspects of the work of the Commission. Both in substance and in regard to its working methods.

In this regard we note with satisfaction that the Commission is increasingly attentive to the views put forward by States in this Committee. In our view this is key to the continued relevance for States of the work of the Commission.

Mr. Chairman,

The Nordic countries welcome the decision by the Planning Group of the ILC to establish a Working Group on Methods of Work. It is the first time since 1996 that the ILC has made a proper review of its working methods and we commend the initiative and note with appreciation the conclusions that have been taken in this regard. The proposals will result in more efficient working methods. As regards the relationship with the Sixth Committee, we support the introduction of the report by the Chairman of the Commission, divided into parts. We also take note of next year’s sessions and support the retaining of split sessions for several reasons, including that it allows for proper preparation of the Commission’s work.

The Nordic countries underline that the quality of the work of the Commission as well as timely results depend solely on its members and of their commitment to the work in the ILC. In that respect it would be useful to keep a record of attendance of the members of the Commission in its sessions. We also call on States to nominate members to the ILC with the strongest possible background in and knowledge of international law and we advise against making policies determining both nominations and the contributions of the members to the work.

Mr. Chairman,

The Nordic countries welcome the reconstitution of the Working Group on the Long-term Programme of Work, and we have taken note of the proposals for new topics to be considered by the ILC. Amongst the five new proposals we would like to see the Commission prioritise the topics of the protection of the environment in relation to armed conflict as well as the protection of the atmosphere and formation and evidence of customary law. As regards the proposal to include the topic “The Fair and Equitable Treatment Standard in International Investment Law”, we note the interrelation between this topic and the Most-Favoured Nation clause, and believe that the work on the MFN clause should be completed before any decision is taken by the Commission on the inclusion of a related topic. This will also ensure that any consideration of a new topic benefit to the maximum from the methodical findings that are currently being made.

Now turning to the topic of responsibility of international organisations, the Nordic countries would like to thank the Commission and, particularly the Special Rapporteur Professor Giorgio Gaja for their work on this important topic. The Commission has worked swiftly and has on the basis of Professor Gaja´s excellent work produced interesting, well-structured and thorough reports.

The draft articles adopted on second reading by the Commission this year comprise - together with the reports - a very useful attempt at describing practice and the applicable rules on responsibility of international organisations. We believe that a great deal of available practice has been compiled and that the draft articles in many ways reflect customary international law as it stands today.

It has, however, also become clear over the years of the Commission’s consideration of this topic that the available practice is in some areas relatively sparse and not always consistent. That raises the question to what extent rules on the responsibility of international organisations have crystalized or matured to the necessary degree of precision to form the basis for an actual convention on the topic. Thus, the Nordic countries find that these draft articles should presently stand to serve as useful inspiration – and be further refined - in the future practice of states and international organisations. The responsibility of international organisations is an important and developing area of law and, as stated, we believe that the Commission has done an excellent job in bringing these rules an important step further towards maturity.

Mr. Chairman,

Finally, the Nordic countries would like to take this opportunity to comment on the important contribution to the Law of Treaties through the dedicated work of the Commission, as well as that of Special Rapporteur Mr. Alain Pellet concerning the topic of reservations to treaties. The topic has been on the Commission’s agenda for a number of years and the adoption of the Guide to Practice and its extensive commentary marks the conclusion of a significant piece of work of the Commission which is worth highlighting even if the topic itself will not be discussed in full in the Sixth Committee until next year.

The Nordic countries support the emphasis put by the Commission on the reservations dialogue, although we are not in favour of the Commission’s proposal concerning a dispute resolution mechanism. The subject of impermissible reservations is also of particular interest to the Nordic States, including Guideline 4.5.3 which addresses the effect of an invalid reservation. We have taken special notice of the revised guidelines by the Working Group in 2011 as concerns the status of the author of an invalid reservation. The text presented last year stated the presumption that the reserving State is bound by the treaty without the benefit of the reservation unless a contrary intention can be shown. In the adopted Guideline 4.5.3 the presumption has now been shifted to state that the status of the author depends on its expressed intention. The author of an invalid reservation may at any time express the intention not to be bound by the treaty without the benefit of the reservation. Although we have noted the Commission’s distinction between withdrawal and intention to be bound, we oppose the proposed change of presumption in the adopted text and its compatibility with the principles of treaty law as set out in the Vienna Convention on the Law of Treaties. Furthermore, we would like to reiterate that the severability of an impermissible reservation is supported by state practice. As is well known, the Nordic States have frequently put forth the view that the option of severability secures bilateral treaty relations and opens the possibility of dialogue within the treaty regime. The Nordic countries will therefore continue to hold the view that the author of an invalid reservation will continue to be bound by the treaty in question without the benefit of the invalid reservation.